Buren CHINA China Jan Holthuis and Li Jiao Buren Litigation • cases concerning the general public; and • cases having other major potential social impact. 1 Court system What is the structure of the civil court system? Similar to the jury, a people’s juror’s main responsibility in the bench is to conduct fact finding in the trial. What is different is that the peo- In China, the people’s courts are judicial organs exercising judicial ple’s jurors enjoy the same rights as regular judges after assuming power on behalf of the state. The civil court system is, in general, com- their posts and sit in the bench with the regular judges. People’s jurors prised of Supreme People’s Court, local people’s courts and specialised are selected from citizens who are non-legal professionals with cer- people’s courts at various levels. The local people’s courts are divided tain requirements in age, education and historical record of conduct. into three levels, namely the basic people’s court, the intermediate Because there is a list of eligible people’s jurors already in place in every people’s court and the Higher People’s Court. In parallel with the local people’s court, the selection process for each case will be conducted by people’s courts system, there are specialised people’s courts set up for computer on a random basis. Further, for special cases for which peo- the trial of specialised cases, which currently include military courts, ple’s jurors with specific professional knowledge is required, the peo- railway courts, maritime courts, forestry courts, agricultural reclama- ple’s court may randomly select the jurors from people’s jurors with the tion courts, financial courts, intellectual property courts and internet required professional knowledge. courts. China practises a system of courts characterised by ‘four levels and 3 Limitation issues two instances of trials’. ‘Four levels’ refers to the four levels of courts in hierarchy as introduced above, and ‘two instances of trial’ means that What are the time limits for bringing civil claims? a civil case should be finally decided after two trials, which, however, is According to the General Rules of Civil Law effective as of 1 October subject to retrial if there is error in the judgment. 2017, the ordinary limitation period for civil claims is extended from The subject matter, nature or size of the claim will decide which two years to three years; although special rules, either shorter or longer level of court such claim shall be brought to for the first instance trial. than the said three years, will apply to certain types of disputes. For example, an intermediate people’s court shall have jurisdiction as a The limitation periods for some specific types of cases are set out court of the first instance over the following types of civil cases: by other laws as follows: • major cases involving foreign parties; • claims for product liability: two years; and • cases with significant impact in the areas over which the courts • claims for disputes arising from an international contract for the exercise jurisdiction; and sales of goods or a contract for the import and export of technol- • cases determined by the Supreme People’s Court to come under ogy: four years. the jurisdiction of the intermediate people’s courts. The above limitation periods shall start running from the date when A Higher People’s Court shall have jurisdiction as a court of the first the claimant knows or should have known the facts giving rise to his instance over civil cases with significant impact in the areas over which or her claim and who the accused is. However, in any event, if more they exercise jurisdiction. than 20 years have passed since the date of the occurrence of facts giv- The Supreme People’s Court shall have jurisdiction as the court of ing rise to the claim, the court shall not offer any protection. However, the first instance over the following types of civil cases: there is an exception in product liability claims. The right to claim com- • cases with significant impact on the whole country; and pensation for damage caused because of defects of products shall be • cases that the Supreme People’s Court deems it should try by itself. void 10 years after the products are delivered to the first consumers, unless the product’s expressly-stated warranty is longer. 2 Judges and juries The law provides rules to suspend the limitation period in case What is the role of the judge and the jury in civil proceedings? that within the final six months of the limitation period, the rights to ‘demand’ cannot be exercised because of any of the statutory obstacles: In China, an inquisitorial system is adopted in the judicial system • force majeure; whereby the judges take dominant roles in the trial and are actively • the person who has no or limited capacity for civil conduct has no involved in fact finding by questioning the parties, advocates of the par- statutory agent, or his or her statutory agent dies or loses the capac- ties and witnesses. This is opposed to the adversarial system adopted ity for civil conduct or the power of agency; by most common law countries where the fact-finding process is con- • neither a successor nor a legacy caretaker has been determined trolled by the parties and the judge or jury remains neutral and passive after the commencement of succession; throughout the proceeding. • the obligee is controlled by the obligor or other persons; and Besides, a jury is not provided under the judicial system of China, • other obstacles result in the failure of the obligee to exercise the and the bench of a case plays both the roles of fact finding and law appli- right of claim. cation. Generally, if a collegiate bench is established to adjudicate a civil claim, it generally consists of purely professional judges. However, The limitation period will be resumed after the causes of such suspen- for certain claims as follows, people’s jurors may be appointed to the sion are eliminated. collegiate bench to participate in the hearing: In addition to suspension, the limitation period can be inter- • cases involving group interest; rupted according to law. The limitation period is interrupted if legal • cases involving public interest; www.gettingthedealthrough.com 1 CHINA Buren proceedings are instituted or if a party demands or agrees to the fulfil- the statement of defence to the claimant within five days from the ment of its obligations. The limitation period commences anew from date when it receives the same; the time of interruption and the limitation period can be interrupted • evidence submission: the period for evidence submission can repeatedly. either be decided by the parties subject to the court approval, or determined by the court (15 days minimum); 4 Pre-action behaviour • counterclaims (if any): the defendant can file a counterclaim before Are there any pre-action considerations the parties should the end of the period for evidence submission; • hearing: the court shall notify the parties and other participants in take into account? the action three days prior to the hearing. During the court hearing, By law, generally, there are no mandatory pre-action requirements the procedure is generally divided into the investigation of the facts imposed before the civil proceeding can be issued, except for the fol- and the presentation of arguments; and lowing cases: • issuing judgment: if a judgment is delivered immediately after the • shareholder derivative lawsuit: the shareholder must first request hearing, the written judgment shall be served to the parties within the (board of) supervisors or the board of directors (executive 10 days. If a judgment is delivered on a fixed date, the written judg- director) to initiate the proceeding unless in case of emergency; ment shall be served to the parties immediately after the delivery. and • labour disputes: a labour dispute shall be first brought before the If there is a need for extension of time under special circumstances, an labour dispute arbitration committee for arbitration before pro- extension of time of six months may be granted subject to the approval ceeding to the court. of the president of the court. If there is a need for further extension of time, the approval of the higher-level court is required. However, there are some pre-action measures available to the party to However, the period for trial of foreign-related civil cases by courts assist in bringing an action. For example, for the purpose of the smooth shall not be subject to the above-mentioned time limits and restrictions. investigation during the proceeding, the enforceability of the judg- Enforcement of judgment: if a party refuses to perform an effective ment, and the suspension of damages caused to the party, such party judgment, the other party can apply for the court for enforcement. The is available to apply for preservation of evidence, preservation of prop- time limit to apply for enforcement of a judgment is two years com- erty and relevant injunctions to the court before the action is initiated, mencing from the last day of the time limit for execution of the judg- depending on the circumstances and in the event of emergency. ment specified in the written judgment. 5 Starting proceedings 7 Case management How are civil proceedings commenced? How and when Can the parties control the procedure and the timetable? are the parties to the proceedings notified of their The case management structure in the Chinese court system is estab- commencement? Do the courts have the capacity to handle lished from top to bottom.